Double Jeopardy - Michigan v. Evans

This past week the United States Supreme Court heard oral arguments in Michigan v. Evans.  The issue in this case is whether a defendant can be retried after a judge erroneously grants a directed verdict.  The defendant can move for a directed verdict at the end of the Prosecution's case and before the defense begins to present its case when the prosecution has failed to meet its burden of proof. 

In Evans the defendant was being tried for arson.  The trial court granted a directed verdict of acquittal to the defendant because prosecutor's had not proved that the burnt house was a dwelling.  While proving that the burnt property was a dwelling was required at common law, it is not an element of statutory arson that the prosecution must prove in Michigan and most other jurisdictions.  The Michigan Court of Appeals and the Michigan Supreme Court reversed the trial court's directed verdict as erroneous and allowed the prosecution to try the defendant again.  The Michigan Supreme Court ruled 4-3 that the trial court's action was not an acquital, but a mere dismissal.  The opinion focused on the lack of a factual resolution in the trial court's rationale as the trial court was focused on a matter of law.  Evans appealed to the United States Supreme Court claiming that double jeopardy precluded a retrial. 

From the transcript it seems like the Court may be leaning towards allowing retrial in limited circumstances.  For instance it could take the position of the Justice Department and allow retrial in cases where judges add an additional element to the offense, but not allow it in cases where the trial court misconstrued an element of the offense.  Errors of substance could also be distinguished from errors of procedure.  Additionally, the Court could distinguish between procedural rulings and rulings that there was insufficient evidence to convict as Justice Breyer proposed.  Under this rule Evans would prevail.  Retrial is already allowed in cases of errors of procedure such as most mistrials and most instances of prosecutorial misconduct, but not when there is a verdict of acquittal based on insufficient evidence.  Another possible distinction would be between errors of law and factual errors.  That said, oral arguments are hard to read as many judges and justices will test both sides with difficult questions even if they have a good idea of which way they will rule.  Both sides at times undermined their own arguments.

http://www.reuters.com/article/2012/11/06/us-usa-court-doublejeopardy-idUSBRE8A51BC20121106

The United States Supreme Court Oral Argument Transcript and Audio:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-1327.pdf

http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-1327

The Michigan Supreme Court Opinion:

http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/SCT/20120326_S141381_58_evans-op.pdf

The Michigan Court of Appeals Opinion:

http://publicdocs.courts.mi.gov:81/opinions/final/coa/20100513_c290833_45_69o-290833-final.pdf

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)